The European Court of Justice has held that member states must require employers to set up a system for measuring actual daily working time for individual workers in order to enable verification of compliance with working time limits. UK legislation is not consistent with this judgment.

The facts

A Spanish workers' union brought a group action against Deutsche Bank asking the national court to make a declaration that the bank was under an obligation to set up a system for recording the time worked each day by its members of staff. The question was referred to the European Court of Justice (ECJ), which considered whether there was such an obligation on the employer under either the Working Time Directive (WTD) or the EU Charter of Fundamental Rights (the Charter).

The ECJ held that, in order to comply with the provisions of the WTD on maximum weekly working time and daily and weekly rest, member states must require employers to set up an "objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured". It is for member states to define the specific arrangements for implementing such a system, having regard, as necessary, to the characteristics of the sectors or undertakings concerned. In the absence of a system enabling the duration of time worked each day by each worker to be measured, the ECJ considered that it was not possible to determine the number of hours worked and when that work was done, or the number of hours of overtime worked. This makes it excessively difficult, if not impossible, for workers to ensure that their rights are complied with and could compromise the WTD's objection of protecting workers' health and safety.

There are serious doubts as to whether UK legislation is consistent with this ECJ judgment. The Working Time Regulations, which implement the WTD into UK legislation, require employers to keep "adequate records" to show compliance with the 48 hour limit on the average week and protections for night workers. However, the regulations do not require all daily hours of work to be measured and recorded, nor is there any mention of recording daily or weekly rest periods. Nor does the WTD.

What does this mean for employers?

This judgment may ultimately have significant ramifications on employers in both the public and private sectors, requiring them to implement systems to record working time for each worker. It is unclear how far it goes, for example what level of record keeping is needed when breaks during the working day are often not recorded?

Public sector workers may well argue the WTD and the Charter have direct effect so are immediately applicable to them.

Workers cannot enforce this judgment against their employers. The Health and Safety Executive, rather than individual employees, is responsible for enforcing time recording requirements of the Working Time Regulations. Currently, Health and Safety Executive guidance states that specific records are not required and that employers may be able to rely on records maintained for other purposes, such as pay. It remains to be seen whether it will amend this guidance, and what steps it will take to enforce the judgment. However, workers can complain to an Employment Tribunal alleging breaches of the various rest periods. We can see workers saying these rights are being breached in the absence of time recording which captures them.

The UK government may also have to take steps to implement this judgment into UK legislation. However, it intervened in this case and argued against the outcome reached by the ECJ. We do not know if and when it will amend the Working Time Regulations.

We are awaiting government and the Health and Safety Executive guidance on this. For the moment we do not consider private sector employers have to follow this judgement. As mentioned, public sector employers may be challenged if they do not introduce time recording systems but understandably could await government guidance.

Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE.

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